UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Deybi Wagner Santana-Zapata

v. Civil No. 15-cv-016-LM Opinion No.

United States of America

O R D E R

Deybi Wagner Santana-Zapata pleaded guilty in this court to

one count of reentry after deportation and was sentenced to 46

months in prison. He now moves pursuant to

to

withdraw his guilty plea and vacate his sentence. The court

appointed counsel to represent him and, on October 23, 2015,

held an evidentiary hearing. For the reasons that follow, the

court denies Santana-Zapata’s motion.

Background

In March 2014, a grand jury indicted Santana-Zapata on one

count of reentry after deportation, in violation of

(a) and (b)(2). Cr. doc. no. 7.1 On June 10, 2014,

Santana-Zapata pleaded guilty. At his change of plea hearing,

Santana-Zapata stated that he understood that he was subject to

1 “Cr. doc. no.” refers to document numbers in the docket of the underlying criminal proceeding (No. 14-cr-024-LM). “Doc. no.” refers to document numbers in the instant proceeding. a maximum sentence of 20 years in prison. At his sentencing

hearing on September 29, 2014, the court calculated Santana-

Zapata’s guideline range to be 46-57 months of imprisonment.

Santana-Zapata’s counsel, Jonathan Saxe, argued for 24 months;

the prosecutor argued for 46 months. The court sentenced

Santana-Zapata to a 46–month prison term. Cr. doc. no. 25.

On January 13, 2015, Santana-Zapata filed a motion to

vacate his sentence, arguing that his lawyer was ineffective for

several reasons, primarily for failing to advocate for a

downward departure under United States Sentencing Guideline §

5K3.1, the fast track program for illegal reentry cases. In an

order dated March 18, 2015, the court found Santana-Zapata’s

contention with respect to the fast track program meritless and

unworthy of an evidentiary hearing for the reasons stated in the

government’s objection. Doc. no. 5. The court appointed a

lawyer for Santana-Zapata and held in abeyance a ruling on

whether an evidentiary hearing was necessary to resolve Santana-

Zapata’s other ineffective assistance of counsel claims until

the lawyer had an opportunity to review the case.

On June 23, 2015, Santana-Zapata filed a supplement to his

§ 2255 motion, doc. no. 9, in which he asserts three claims of

ineffective assistance of counsel. First, he argues that his

plea was not knowing and voluntary because he entered the plea

2 on his counsel’s assurance that the government would “go light”

on him at the sentencing hearing. Second, he argues that his

counsel failed to object to his Presentence Report (“PSR”) on

the basis of Apprendi v. New Jersey,

(2000),

thereby subjecting him to a 20-year maximum sentence. Third, he

argues that his counsel failed to file a notice of appeal on his

behalf.2 The government objects. Doc. nos. 4 & 11.

By order dated September 2, 2015, the court scheduled a

hearing to resolve factual disputes on the first and third

claims.

Analysis

Under § 2255, a federal prisoner may ask the court to

vacate, set aside or correct a sentence on “the ground that the

sentence was imposed in violation of the Constitution or laws of

the United States, or that the court was without jurisdiction to

impose such sentence, or that the sentence was in excess of the

maximum authorized by law or is otherwise subject to collateral

attack.”

(a). When the prisoner's claims are

2 Santana-Zapata asserts a host of other ineffectiveness claims in his § 2255 filings, including that his counsel did not consult with him prior to sentencing, did not investigate mitigation evidence, and did not assert mitigation arguments at his sentencing hearing. At the October 23 evidentiary hearing, however, Santana-Zapata limited the claims currently before the court to only those claims asserted in his supplement (doc. no. 9).

3 based on ineffective assistance of counsel, as they are here,

the prisoner “must demonstrate both: (1) that counsel’s

performance was deficient, meaning that counsel made errors so

serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment; and (2) that

the deficient performance prejudiced the defense.” Rossetti v.

United States,

(1st Cir. 2014) (internal

quotation marks omitted), cert. denied,

(2015)

(citing Strickland v. Washington,

(1984)). A

failure to meet either the deficiency or prejudice prong will

defeat an ineffective assistance of counsel claim. Strickland,

.

The burden on a prisoner who alleges that counsel rendered

constitutionally inadequate representation is “highly demanding”

and “heavy.” Knight v. Spencer,

(1st Cir. 2006)

(quoting Williams v. Taylor,

(2000)).

In assessing the adequacy of appointed counsel, [the court] indulge[s] a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, . . . finding deficiency only where, given the facts known to counsel at the time, counsel's choice was so patently unreasonable that no competent attorney would have made it . . . . And, to establish prejudice, a defendant must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.

4 Rossetti,

(internal quotation marks and

citations omitted). To establish prejudice with respect to a

sentencing hearing, a petitioner must show “that but for his

counsel’s deficiency, there is a reasonable probability that he

would have received a different sentence.” Peralta v. United

States,

(1st Cir. 2010) (internal quotation

marks omitted).

The court may either summarily dismiss a prisoner’s § 2255

claim or grant an evidentiary hearing to determine if it is

meritorious.

(b) provides that:

Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.

In evaluating whether an evidentiary hearing is required,

the court “take[s] as true the sworn allegations of fact set

forth in the petition unless those allegations are merely

conclusory, contradicted by the record, or inherently

incredible.” Owens v. United States,

(1st Cir.

2007) (internal quotation marks and citation omitted).

Because there are factual disputes with respect to Santana-

Zapata’s claims about his understanding of the plea agreement

and his lawyer’s failure to file a notice of appeal, the court

5 held an evidentiary hearing on those claims. The remaining

claim, i.e, his Apprendi-based argument, raises a question of

law which does not require an evidentiary hearing. The court

first addresses the Apprendi-based claim, and then turns to the

two claims on which the court received evidence.

I. Santana-Zapata’s Apprendi-based claim

Santana-Zapata asserts an Apprendi-based argument that his

defense counsel was ineffective for failing to object to the

PSR. The PSR recited a maximum penalty of 20 years because

Santana-Zapata had illegally reentered the country subsequent to

both deportation and a conviction for an aggravated felony. See

(b)(2). Without the conviction for an aggravated

felony, Santana-Zapata would have been subject to a maximum

penalty of only 2 years. See

(a).

Santana-Zapata argues that he would not have been subjected

to the 20-year maximum had his lawyer argued that the maximum

penalty did not apply because neither the indictment nor the

plea agreement (i.e., its recitation of the elements of the

offense and offense conduct) contained a specific reference to

the prior aggravated felony conviction. Santana-Zapata

concedes, as he must, that the indictment cites the aggravated

penalty section of the statute, § 1326(b)(2), and that the plea

agreement’s penalty section recites the maximum penalty as 20

6 years. Additionally, he admitted at his change of plea hearing

that his maximum exposure was 20 years. Cr. doc. no. 29 at 15-

16.

Santana-Zapata further concedes that the law forecloses the

precise legal argument he faults his defense counsel for not

making. See Almendarez-Torres v. United States,

(1998); United States v. Jimenez-Banegas,

(1st Cir. 2015) (“In Almendarez-Torres, the Supreme Court

. . . clearly held that the indictment need not mention the

prior aggravated felony conviction in order for the statutory

maximum penalty of § 1326(b)(2) to be applicable to a defendant

charged under § 1326 . . . .”); see also Apprendi,

(acknowledging that the Court was not revisiting its

holding in Almendarez-Torres).

With no case law on which to rest his Apprendi-based

ineffective assistance claim, Santana-Zapata asserts a novel,

but unpersuasive, argument about an alleged policy of the

probation department that his counsel should have invoked.

Specifically, Santana-Zapata alleges that the probation

department in this district acts unilaterally to treat

Almendarez-Torres as if it had been overruled. He argues that,

had his counsel asserted that his aggravated felony was required

to be listed as an element in the indictment, an argument that

7 the Court squarely rejected in Almendarez-Torres and that the

First Circuit recently rejected in Jimenez-Banegas,

, the probation department would have, per its extralegal

policy, altered the PSR to state a maximum penalty of 2 years.

This argument fails both prongs of Strickland. First, it

is not deficient performance for an attorney to forego arguments

that lack merit. Taking Santana-Zapata’s allegations as true,

if the probation department actually had such a policy and

Santana-Zapata’s counsel was aware of the policy, it would not

have been deficient for counsel to conclude that reliance on the

policy would be foolish because that position is directly

contradicted by controlling case law. That conclusion would be

especially warranted here, where Santana-Zapata was indisputably

subject to a 20-year maximum sentence and counsel’s goal at the

sentencing hearing was to argue in favor of mitigation in hopes

of reducing the length of his client’s sentence.

Santana-Zapata’s Apprendi-based argument also fails under

the second prong of Strickland, as he cannot establish

prejudice. Santana-Zapata argues that his counsel was

ineffective for not having relied on a flawed legal argument at

his sentencing hearing, while hoping that both the government

and the court would be unaware of the law. The concept of

ineffective assistance of counsel does not operate in this

8 fashion. The Strickland prejudice inquiry operates on the

presumption “that the judge or jury acted according to law.”

Strickland,

. “A defendant has no entitlement to

the luck of a lawless decisionmaker . . . . The assessment of

prejudice should proceed on the assumption that the

decisionmaker is reasonably, conscientiously, and impartially

applying the standards that govern the decision.”

.

In making the prejudice determination, a court “must

consider the totality of the evidence before the judge . . . .”

In this case, the plea agreement listed the maximum penalty

as 20 years and at his change of plea hearing, the court

informed Santana-Zapata that he could be sentenced to a maximum

of 20 years. Santana-Zapata does not dispute that he had a

prior aggravating felony that qualified him for the 20-year

maximum sentence. At his sentencing hearing, any objection by

counsel to the failure of the indictment (or plea agreement) to

specify the prior conviction would have been properly overruled.

See Almendarez-Torres,

; Jimenez-Banegas,

. The presumption under Strickland that a court acts

in accordance with the law defeats Santana-Zapata’s prejudice

argument.

For these reasons, Santana-Zapata’s Apprendi-based

ineffective assistance claim is meritless.

9 II. Claims on which the court heard evidence

The court held an evidentiary hearing to resolve factual

disputes on Santana-Zapata’s claims that (1) his lawyer assured

him that the prosecutor would “go light” at his sentencing

hearing and he would not have entered the plea had he known

otherwise, and (2) his lawyer failed to file a notice of appeal.

The court addresses each claim below.

A. Plea agreement

Santana-Zapata claims that his counsel was ineffective

because he assured Santana-Zapata that the government would “go

light” on him at his sentencing hearing and not argue

“forcefully for a 46-month sentence.” He alleges that but for

his counsel’s ineffective assistance he would not have entered a

guilty plea. As a result, Santana-Zapata asserts that his plea

was not knowingly and voluntarily entered.

“Before deciding whether to plead guilty, a defendant is

entitled to the effective assistance of competent counsel.”

Padilla v. Kentucky,

(2010) (internal

quotation marks omitted). As discussed above, to show

ineffective assistance of counsel, a defendant must demonstrate

that counsel’s performance was deficient and that the deficient

performance prejudiced the defense. Strickland,

. “In the guilty plea context, [prejudice] means [a

10 petitioner] has to demonstrate a reasonable probability that,

but for counsel's errors, he would not have pleaded guilty and

would have insisted on going to trial.” Moreno-Espada v. United

States,

(1st Cir. 2012) (internal quotation

marks omitted).

“It is well-established in the First Circuit that ‘an

inaccurate prediction about sentencing will generally not alone

be sufficient to sustain a claim of ineffective assistance of

counsel.’” Alcott v. United States, No. 04-CR-10286-PBS,

, at *5-6 (D. Mass. Sept. 2, 2009) (quoting Knight v.

United States,

(1st Cir. 1994)). Further, “it

is well settled that post-sentencing buyer's remorse is not a

valid basis on which to dissolve a plea agreement and the fact

that a defendant finds himself faced with a stiffer sentence

than he had anticipated is not a fair and just reason for

abandoning a guilty plea.” Moreno-Espada,

(internal quotation marks omitted). “A guilty plea will not be

set aside where a defendant has had a change of heart simply

because . . . he is not satisfied with the sentence he has

received.”

(quoting Miranda–González v. United States,

(1st Cir. 1999)).

In the plea agreement, the prosecutor agreed to recommend

that the defendant receive a sentence at the low end of the

11 applicable sentencing guidelines range. There is no dispute

that Santana-Zapata understood the terms of the plea agreement

and that, before pleading guilty, he told the court that there

were no “promises of leniency or any other inducement of any

kind to enter a guilty plea other than whatever statements are

contained in his plea agreement.” Cr. doc. no. 29 at 22.

Santana-Zapata testified that he failed to tell the court of the

promise to “go light” because, as his counsel explained it to

him, “it wasn’t actually necessary.”

Attorney Saxe testified that there was never any

understanding that the prosecutor would “go light” at the

sentencing hearing. Rather, Saxe had a clear memory of the

prosecutor taking an uncompromising view that a guideline

sentence was the appropriate sentence. Saxe’s testimony is

consistent with the terms of the plea agreement and the

prosecutor’s argument in favor of the 46-month sentence at the

sentencing hearing. Saxe testified that it is unlikely that he

would have informed Santana-Zapata of any promise to “go light”

because there was no such promise.

The court finds that the evidence clearly establishes

Santana-Zapata entered his plea knowingly and voluntarily. At

the time he entered the plea, Santana-Zapata understood that: he

was subject to a maximum prison sentence of 20 years; his

12 guideline range would likely be 46-57 months; the prosecutor

would argue for 46 months; his attorney would argue for 24

months; and his attorney believed he had an excellent chance of

receiving a sentence in the range of 24-30 months. On cross,

Santana-Zapata conceded that the “promise” to “go light” was in

actuality a “prediction” on his counsel’s part that he would

receive a lighter sentence than the bottom of his guideline

range.

The law in this circuit is clear. Attorney Saxe’s

inaccurate prediction that Santana-Zapata would receive a below-

the-guideline sentence cannot sustain a claim of ineffective

assistance of counsel. See Knight,

. Santana-

Zapata has not sustained his burden on this claim.

B. Notice of appeal

Santana-Zapata’s final claim is that his counsel ignored

his instruction to file a notice of appeal to challenge his 46-

month sentence. If true, there is a presumption that Santana-

Zapata has stated a meritorious claim for ineffective assistance

of counsel. See Roe v. Flores–Ortega,

(2000)

(holding that where a defendant “instruct[s] counsel to perfect

an appeal, [he has] objectively indicated his intent to appeal

and [is] entitled to a new appeal without any further showing”);

see also Hernandez v. Reno,

(1st Cir. 2001)

13 (“counsel's failure to comply with a defendant's request to

appeal would be treated as prejudice per se”).

Santana-Zapata testified that, following his sentencing

hearing, he instructed Attorney Saxe to file a notice of appeal

but Saxe ignored that instruction. The court did not find his

testimony on that point credible. Saxe had no memory of any

meeting with Santana-Zapata but testified persuasively that it

is his practice to file a notice of appeal when his client

requests it, even where, as is the case here, a client’s plea

agreement contains a waiver of appellate rights should he

receive a sentence within the guideline range. Santana-Zapata

has not met his burden of proving that he instructed Saxe to

file a notice of appeal.

Because Santana-Zapata has not carried his burden of

showing that his trial counsel’s conduct fell below the standard

of reasonably effective assistance, he has not shown that he was

convicted and sentenced “in violation of the Constitution or

laws of the United States.” Consequently, he is not entitled to

relief under

.

Conclusion

For the foregoing reasons, Santana-Zapata’s motion for

relief under

(doc. no. 1) is denied. Because

Santana-Zapata has not made a substantial showing of the denial

14 of a constitutional right, the court declines to issue a

certificate of appealability. See

(c)(2); Rule

11, Federal Rules Governing § 2255 Cases. The clerk of court

shall enter judgment accordingly and close the case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge October 28, 2015

cc: Richard Guerriero, Esq. Seth R. Aframe, Esq.

15